Legal implications of smoking (bans) in English prisons

Abstract

The high prevalence of tobacco smoking in prison, and certain aspects inherent in prison culture make smoking in that environment particularly difficult to regulate. Over the last decade, the UK government has adopted and sought to implement gradually its plan to make all prisons smoke-free nationwide. The UK Supreme Court recently ruled inBlackthat the Health Act 2006, which prohibits smoking in most enclosed public spaces, does not bind the Crown and consequently does not apply to public prisons. Both developments have implications for the human rights protection of smoking and non-smoking prisoners. This paper considers how English smoking and non-smoking prisoners’ (human) rights are currently protected, and what the legal implications are of a complete ban on smoking in English prisons. The paper reflects on whether an indoor smoking ban might strike a better balance between the competing rights and interests of smoking and non-smoking prisoners than a complete ban.